Jackie Lingerfelt v. Elite Logistics

1. Period Ending March 31, 2001: 10 regular hours worked $=\ 730.33;
2. Period Ending March 24, 2001: 21.5 regular hours worked $=\ 833.45;
3. Period Ending March 17, 2001: 10.5 regular hours worked $=\ 602.48;
4. Period Ending March 10, 2001: 11.5 regular hours worked $=\ 736.28;
5. Period Ending March 3, 2001: 10 regular hours worked $=\ 1120.72;
6. Period Ending February 24, 2001: this period should not be used as Employee commenced work on a day other than the beginning of a calendar week

The week and wages earned during the week ending in February 24, 2001, should be excluded in computing the average weekly wage as the employee commenced employment on a day other than the beginning of a calendar week. Pursuant to section 287.250.1(4), the employee's wages for the thirteen-week period must now be divided by twelve, in lieu of thirteen.

The total wages for the thirteen-week time frame is $\ 11,370.50. Dividing this by twelve gives an average weekly wage of $\ 947.54 and a resulting compensation rate (maximum benefit amount) of $\ 599.96 for permanent total/temporary total disability benefits and $\ 314.26 for permanent partial disability benefits. Therefore, the Commission finds the applicable compensation rate to be $\$ 599.96 / \ 314.26.

Based on the above modification, the Commission ascertains and determines employee's compensation rate for temporary total disability benefits is $\ 599.96. Consequently, the amount of compensation payable is modified to the following amount: underpayment of temporary total disability of $\$ 1,317.57[(\$ 599.96-564.35) \times 37$ weeks].

The award and decision of Administrative Law Judge Margaret Ellis Holden, issued January 10, 2006, as modified is attached and incorporated by reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad$ 12th day of April 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employer: Elite Logistics

Additional Party: Second Injury Fund

Insurer: Rsko

Hearing Date: 7/20/04 \& 12/16/05 Checked by: MEH

1. Are any benefits awarded herein? YES
2. Was the injury or occupational disease compensable under Chapter 287? YES
3. Was there an accident or incident of occupational disease under the Law? YES
4. Date of accident or onset of occupational disease: 5/19/01
5. State location where accident occurred or occupational disease was contracted: Greene County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? YES
7. Did employer receive proper notice? YES
8. Did accident or occupational disease arise out of and in the course of the employment? YES
9. Was claim for compensation filed within time required by Law? YES
10. Was employer insured by above insurer? YES
11. Describe work employee was doing and how accident occurred or occupational disease contracted: CLAIMANT WAS DRIVING A HOSTLER VEHICLE WHEN HE HIT A POTHOLE CAUSING HIM TO STRIKE HIS HEAD ON THE ROOF OF THE VEHICLE.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: BODY AS A WHOLE
14. Nature and extent of any permanent disability: 20 %
15. Compensation paid to-date for temporary disability: $\ 20,880.95
16. Value necessary medical aid paid to date by employer/insurer? $\ 44,480.04

Employee: JACKIE LINGERFELT Injury No. 01-053538

1. Value necessary medical aid not furnished by employer/insurer? NONE

1. Employee's average weekly wages: N/A
2. Weekly compensation rate: $\$ 590.17 / \ 314.26
3. Method wages computation: ACCORDING TO LAW

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: $\ 0

0 weeks of temporary total disability (or temporary partial disability)

80 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

UNDERPAYMENT OF TTD \$25.82 PER WEEK FOR 37 WEEKS TOTALING \$955.34

Permanent total disability benefits from Employer beginning n/a, for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits

Permanent total disability benefits from Second Injury Fund: weekly differential (0) payable by SIF for weeks beginning n/a and, thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded: NONE

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

PAUL REICHERT

FINDINGS OF FACT and RULINGS OF LAW:

Hearing Date: $\quad 7 / 20 / 04$ \& 12/16/05 Checked by: MEH

On July 20, 2004, and December 16, 2005, the parties appeared before the undersigned administrative law judge for a final hearing. The employer appeared represented by Jerry Harmison and the claimant appeared in person represented by Paul Reichert. The Second Injury Fund appeared represented by Susan Colburn.

The parties stipulated that on or about May 19, 2001, Elite Logistics was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by Rsko. On the alleged injury date of May 19, 2001, Jackie Lingerfelt was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. The parties agree that on or about May 19, 2001, the claimant sustained an accident which arose out of the course and scope of employment. This employment occurred in Greene County, Missouri. The claimant notified the employer of his injury as required by Section 287.420. The claimant's claim was filed within the time prescribed by Section 287.430. Temporary total disability benefits have been paid in the amount of $\ 20,880.95, which represents 37 weeks at the rate of $\ 564.35 between the dates of June 10, 2001, to March 2, 2002. The employer has paid medical benefits in the amount of $\ 44,480.04. The attorney fee sought is 25 %.

1. Whether the accident caused the injuries and disabilities for which benefits are now being claimed.
2. Whether the employer is obligated to pay for past medical expenses, including the medical lien.
3. Whether the claimant has sustained injuries that will require future medical care in order to cure and relieve the claimant of the effects of the injuries.
4. What is the proper rate (ruled $\ 590.17 ).
5. Any temporary total disability benefits owed to the claimant for past underpayment through March 4, 2003.
6. The nature and extent of any permanent disabilities from employer including permanent total disability from March 5, 2003.
7. The liability of the Second Injury Fund.

FINDINGS OF FACT:

The claimant worked as a truck driver. Prior to this he had been a silkscreen operator at Litton Industries, a

dump truck driver, and then a truck driver.

On May 19, 2001, the date of the injury, he was operating a "hostler buggy", which is a one-person vehicle used to move trailers inside the yard. He was taking trailers from the dock to the back lot. It had been raining earlier in the day. There was a hole in the pavement that he did not see because of water on the pavement. He hit this hole which caused him to bounce up in his seat and strike his head on the roof of the vehicle.

He was at first dazed. He reported the incident to his supervisor. He finished work that day. He experienced increased pain and worked until June 9, 2001, when he reported to the dispatcher that he could not work because of the pain in his neck.

The employer sent him to Dr. Jeffrey Woodward. Claimant was having pain in his neck, between the shoulder blades, in his shoulders, his fingers tingled, and his arm hurt. His left leg has started hurting and his hip and thigh were numb. He was referred to Dr. Ceola who recommended surgery. He was sent to Dr. Reintjes in Kansas City for a second opinion. He also recommended surgery.

An EMG performed on October 1, 2001, showed mild denervation in the C7-8 distribution, suggestive of a mild or early right C7-8 cervical radiculopathy. A cervical myelogram performed October 8, 2001, showed osseous ridging causing some mild spinal stenosis at C5-6 and C6-7. A CT scan that same day showed very mild spinal stenosis at C6-7 with flattening of the cervical cord and narrowing of the anterior subarachnoid space causing associated cord deformity at C5-6. The claimant had a history of atrial fibrillation and